“We who seek to build democracy must not be bound by the false assertion that the rule of law is democratic. A re-examination of history teaches us that our powerful legal system is a massive fortress against popular sovereignty. One of our most important tasks is to revisit fundamental questions that were resolved by undemocratic means in the past”.
Doug Hammerstrom “The Rule of Law versus Democracy” in By What Authority (Vol. 5, No 1, Winter 2002)
“The more corrupt the Republic, the more the Laws”. –Tacitus
Human beings, despite all the centuries of development and progress and evolution are still somewhat rigid when it comes to issues that affect everyday existence and this in the face of obvious knowledge. It is no fault of anybody. We are only human. Nobody has a monopoly of knowledge or wisdom in this world, and so I would like to seek the indulgence of lawyers, political commentators and jurists for venturing into an area of which I am not an expert. I have therefore endeavoured to do a little research before daring to write this article.
Democratic governance is based on the will of the people and is the form of governance best suited to allowing all people to live in dignity and freedom. This is also emphasised by the Millennium Declaration, in which the international community undertakes to promote democracy worldwide. Democracy requires a “rule of law” framework in order to govern the interaction and co-existence of all citizens. By guaranteeing civil rights, the rule of law also creates the basic conditions in which individuals can pursue their own personal development as they choose. Human rights, the state monopoly of power, the separation of powers and an independent, effective judiciary play a key role in this context.
For much of human history, rulers and law were synonymous — law was simply the will of the ruler. A first step away from such tyranny was the notion of rule by law, including the notion that even a ruler is under the law and should rule by virtue of legal means. Democracies went further by establishing the rule of law. Although no society or government system is problem-free, rule of law protects fundamental political, social, and economic rights and reminds us that tyranny and lawlessness are not the only alternatives.
I believe, like so many other Nigerians, in the democratic institution and dispensation in the country. As a committed democrat, I believe this is the only way we can survive and progress as a nation and develop as a people. I also believe in the Rule of Law, which is defined as the “principle” that governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedure. The principle is intended to be a safeguard against arbitrary governance. We actually need this for our democracy to survive. I have highlighted the word “principle” because principle is in turn defined as “a general truth used as a basis of reasoning or action, or as a personal code of conduct, a scientific law shown or used in the working of something” (Oxford English Dictionary). A principle is therefore not binding on anybody except the person who holds on to that principle; it is discretionary and not to be taken as a whole truth or necessarily as a benchmark, however it is often regarded as a guide in explaining one’s actions or beliefs. A principle can be bad or good, wrong or right, depending on the circumstance or the individual. For example, Adolf Hitler’s principle of Nazism was not something that was widely acceptable, yet it remained a principle and a doctrine. Same logic goes for Communism or Marxist principles. Even, capitalism is not widely accepted.
However, we should put issues in perspective and be a bit more realistic and impartial, at least as far as Democracy, Nigerian-style is concerned. Yes, we all have our biases but sometimes we should put all these aside if we are truthful or honest about making our country, not great (I don’t care about Nigeria being great now) but a liveable, peaceful, enjoyable and progressive nation for all of us.
We must first of all recognise that despite the nearly 50 years of independence, in which we inherited a democratic system of governance from the British, and also had our own very first democratic experiment (1979 to 1984) and now from 1999 to the present, our democracy is still largely nascent and imperfect. We cannot however, but recognise that we are slowly, albeit painfully, creeping towards what a modern democratic society should be. There will be teething problems, and we have them in abundance. Rome was not built in a day, and Nigeria should be no different. Any exception to this norm will be the Eighth Wonder of the Modern World.
We should recognise that since inception, there has been arguably little or no rule of law in Nigeria, whether under a democratic dispensation or a military dictatorship. It has always been that the law was the will of the rulers. It does not matter whether those rulers were good or bad. The military ruled by decrees, and imposed whatever laws or decrees they deemed fit on us, hence those laws were made to benefit only a few of the citizenry and is at the whim of the ruler. The military even wrote our current constitution, no matter how much, as people often say, we borrowed it from the United States. Nothing is perfect or static in this world; not even laws and constitutions. The American Constitution, for example, has undergone various and numerous changes over the centuries and will continue to do so till the end of time to reflect sociological, economic, cultural and human changes as inevitably they will happen. Why then do we think that the Nigerian situation must be different? Constitutions and laws are versatile documents. They can be manipulated to suit anybody. They can be amended. They can be interpreted in very different ways to have different meaning to different people at different times. They are not rigid articles of governments and the judiciary. In fact, that is why lawyers are on opposite sides everytime in a court of law, one arguing for and the other arguing against; interpreting the law to suit themselves or a particular case. The same goes for Constitutions; legislators, supposedly versed in the Constitution will interpret it differently to suit their own political agenda. Jurists have different interpretation and opinion of same sections of the same law. This is what makes laws and constitutions very robust.
Secondly, why should the rule of law apply to people who had flouted the rule of law in the first place to get where they are today? Ninety percent (and this is my own guesstimates) of people holding political positions today in Nigeria got there by committing electoral fraud or corruption. They therefore do not have the moral right to shout that the rule of law is being flouted when they see things not going their way. People seem to forget this fact, as well as the fact that we have, according to our constitution, an “Executive President” and the word “Executive” means a “person or group with managerial powers, with authority to put government decisions into effect”. The populace has shown confidence in such a person or group of persons by electing(?) him or them to be at the helms of their or national affairs and vested in him or them the authority to do what he or they think is best for them, and in their best interest.
When Governor Ladoja of Oyo State was unconstitutionally and illegally impeached, he fought by, invoking the rule of law, and finally got justice by adhering to the rule of law. But incidentally, everybody forgot that a few years before then, Governor Ladoja himself deliberately failed to obey a court order directing him to recognise and swear in a Local Government Chairman who had won the election, but was wrongly barred from taking office. It was, ironically, Gov Ladoja’s deputy who took over from him, who finally obeyed the court order. So we see how convenient it is to use the phrase “rule of law” to suit particular situations and circumstances.
When things were going on swimmingly well for these corrupt politicians, nobody ever said anything about the rule of law. Every political leader had a field day in Nigeria dipping their hands in the federal, state and local government treasury. The common fraudsters, “419ers” were being picked up by the EFCC by the hundreds. Our people were applauding Mr Nuhu Ribadu. Suddenly, the lights were turned on the nefarious and genocidal activities of the politicians and so-called leaders, and suddenly, all hell broke loose and we keep hearing that Obasanjo and the EFCC have no regard for the rule of law. Accepted that a lot of these “execu-thieves” and other politicians are still wandering around and carrying on business as usual, and the Presidency and EFCC seem to be selective in hounding them and justice is slow, what we have seen in recent times about tackling corruption in Nigeria has never, in the annals of Nigerian history, happened before. With Yar’Adua’s Presidency, we now see more arrests and arraignment now that immunity for most of them is now over. Kalu, Turaki, Nyame, Nnamani, Dariye. More ex-Governors are also being investigated and it seems “ogbologbos” like Ibori will soon be in the net. These people are common thieves, and they must be treated as such.
Again, at the risk of being labelled an anarchist, I submit that as far as Nigeria is concerned, taking into consideration how deep the hydra-headed monster, that malignant tumour called corruption, has eaten deep into the Nigerian psyche and polity, the rule of law cannot effectively tackle it, unless we are not serious about this war. To people shouting rule of law, I don’t think they realise that Nigeria is not what one will call a “normal” country for now. As I have said in previous articles, Nigeria is an Aegean stable. It will take a Hercules to cleanse it. A bad disease requires a bad medicine; that is what our elders used to say. This is applicable to getting rid of corruption in Nigeria for the next 10 or 20 years. Believe me. There has to be a time when we call a spade a spade, but people who are benefiting from this corrupt system, who are now finding it really hard to contemplate alternative means of income are shouting wolf and scare-mongering and professing to know about rule of law, which they do not even comprehend.
About Akintokunbo A Adejumo
Akintokunbo Adejumo, a social and political commentator on Nigerian issues, lives and works in London, UK. He is a graduate of the University of Ibadan, Nigeria (1979) and University of Manitoba, Canada (1985). He also writes on topical issues for Nigerians In America and other newspapers and internet media including Nigeriaworld, Nigeria Today Online, Washington Nigerian Times, Wise News Today, etc. He coordinates Champions for Nigeria.